Artists vs. Copyright Law

We’ve all seen the F.B.I. notices at the beginning of DVDs and the dire warnings by the record labels: their works are “private property” and any unauthorized uses amount to “theft” or “piracy” punishable by law. It’s a big lie. There is a whole class of “unauthorized uses” that are entirely legal, not to mention necessary for education, democracy and ordinary social life. It’s called “fair use,” which is a legal doctrine of copyright law that allows anyone to excerpt and re-use film, music, books and other copyrighted works without getting advance authorization or paying any money.

After constant harangues about the sanctity of their “private property” and the scourge of “piracy,” it was refreshing to experience World Fair Use Day in Washington, D.C. on January 12. The event — hosted by Public Knowledge, the defender of the public’s stake in the Internet and copyrighted works — brought together some two dozen artists, lawyers, scholars, journalists and others who care about our untrammeled right to use and re-use our own culture.

The evening before the conference proper, two films on remix culture were shown. Both deserve large audiences. RIP: A Remix Manifesto, by Brett Gaylor, is a tribute to remix in video and film, featuring performance artists like Girl Talk and commentators like Lawerence Lessig. Kembrew McLeod’s film Copyright Criminals documents the history of sampling and its importance in hip-hop culture. The film will air on PBS on January 19.

It was great to see such cutting-edge artists showcase such works in the stodgy world of Washington politics and policy. It reminded me of a story I once heard about U.S. Register of Copyrights Marybeth Peters, who upon seeing a certain video mashup, exclaimed how fascinating it was — but quickly added, “Of course, it’s totally illegal!” That was the cultural frontier explored at World Fair Use Day, where many artists told how their imaginative new works — many with tart political or cultural statements — ran up against the legal roadblocks of copyright law.

For example, Dan Walsh of Dublin, Ireland, came up with an inspired way to remix the cartoon cat “Garfield.” By eliminating Garfield from the comic strip, leaving only the character Jon and his “dialogue bubbles,” the resulting strip reveals Jon as a terribly lonely suburbanite living with deep existential angst. “Garfield Minus Garfield” became a hugely popular Web remix of the cartoon — a fact that started to alarm Walsh because he realized he could be sent to jail for five years for copyright infringement.

Fortunately, Garfield’s syndicator realized that “Garfield Minus Garfield” was a great way to rejuvenate an aging, no-longer-popular cartoon strip, and collaborated with Walsh in releasing a new book of the revised cartoon strips. A nice ending, but should Walsh have needed to earn the approval of the Garfield syndicate for his non-commercial uses of the strip?

I was also captivated by Nina Paley, a filmmaker, animator and cartoonist who created an award-winning animated film Sita Sings the Blues, The 70-minute film is a musical and a personal interpretation of the Indian epic the Ramayana, in which the two gods Sita and Rama can’t make their marriage to each other work. It is a story that spoke to Paley because it mirrored her personal breakup with her husband.

What makes the film notable — beyond its stylish, mesmerizing re-telling of an ancient story — is the copyright problems that Paley encountered. She wanted to use songs by a virtually forgotten singer of the 1920s, Annette Hanshaw, which were in the public domain. But it turned out that the compositions of the songs (as opposed to the recordings) were still under copyright — 80 years after the fact! The company that owned the rights wanted $20,000 for each of eleven songs used in the film, or $220,000.

Paley went ahead and used the songs anyway because she considered them so indispensable to the film. As she explains on her website:

The songs themselves inspired the film. There would be no film without those songs. Until I heard them, the Ramayana was just another ancient Indian epic to me. I was feebly connecting this ancient epic to my own experiences in 2002. But the Hanshaw songs were a revelation: Sita’s story has been told a million times not just in India, not just through the Ramayana, but also through American Blues. Hers is a story so primal, so basic to human experience, it has been told by people who never heard of the Ramayana. The Hanshaw songs deal with exactly the same themes as the epic; but they emerged completely independent of it. Their sound is distinctively 1920’s American, and therein lies their power: the listener/viewer knows I didn’t make them up. They are authentic. They are historical evidence supporting the film’s central point: the story of the Ramayana transcends time, place and culture.

Despite the risks of being thrown in jail for copyright infringement, Paley released the film for free on the Web under a Creative Commons Attribution-ShareAlike license. So she is not making any money directly from the film. But Paley has found that she is actually making more money, indirectly, by sharing the film on the Web. It has generated lots of publicity that in turn has helped her sell merchandise related to the film. It has also given her considerable visibility and acclaim.

Paley took the risk of being prosecuted because “I saw what happened to Annette Hanshaw’s beautiful recordings: they got locked up so no one could hear them. I didn’t want that to happen to my film. My first concern is Art, and Art has no life if people can’t share it.”

Needless to say, Washington doesn’t usually hear from these sorts of artists. They are more likely to be lobbied by rock stars and film celebrities, who are presented as the epitome of artistic achievement. Earth to Washington: There is a big, wide universe of artists out there who have little to do with Big Media, and who nonetheless need the right to be as creative as possible. They need robust fair use rights, access to the public domain and limits on the term and scope of copyright law.

There were lots of other artists at World Fair Use Day explaining how their creativity is running athwart copyright law — and how fair use and Creative Commons licenses are indispensable to their work. Check out the entire program at the WFUD website and watch the webcasts. I’m already looking forward to the second annual World’s Fair Use Day. It’s about time that these perspectives were heard on Capitol Hill and in the White House directly from artists.

Originally published by David Bollier at Onthecommons.org under a Creative Commons Attribution license.